TMI Blog2019 (1) TMI 1610X X X X Extracts X X X X X X X X Extracts X X X X ..... to the contention advanced by the ld. A.R that as the bank account or bank passbook of an assessee cannot be held as the latters 'books of account', hence no addition in respect of a cash deposit made in the said account could be validly made under Sec.68 Our aforesaid observations is duly fortified by the judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Bhaichand H. Gandhi [ 1982 (2) TMI 28 - BOMBAY HIGH COURT] . We thus respectfully following the judgment of CIT Vs. Bhaichand H. Gandhi (supra) and being in agreement with the view taken by the coordinate bench of the Tribunal i.e. ITAT, Mumbai in case of Mehul V. Vyas Vs. ITO [ 2017 (4) TMI 534 - ITAT MUMBAI] thus are of the considered view that the addition made by the A.O u/s 68 cannot be sustained, and as such is liable to be vacated. - Decided in favour of assessee - ITA No.105/Asr./2017 (Assessment Years: 2008-09) - - - Dated:- 15-1-2019 - Shri N.K. Saini, Vice President and Shri Ravish Sood, Judicial Member Appellant by: Shri Ashray Sarna, A.R. Respondent by: Shri Bhavani Shankar, D.R ORDER Ravish Sood, The present appeal filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year under consideration was received by him from the A.O. The assessee had stated that as the delay in filing of the appeal had arisen not on account of any lapses or laches on his part, but on account of an inadvertent omission on the part of his aged mother, therefore, the delay of 80 days involved in filing of the appeal may be condoned. 5. We have deliberated at length on the reasons leading to the delay in filing of the present appeal, and are persuaded to accept the claim of the assessee that the same had occurred on account of an inadvertent omission on the part of his mother to deliver the order to him. We find that the aforesaid claim of the assessee is duly supported by the affidavit, dated 17.02.2017 that has been filed by him along with the aforementioned application seeking condonation of delay in filing of the appeal. We thus being of the considered view that there is merit in the aforesaid application filed by the assessee, thus condone the delay of 80 days in filing of the present appeal before us. 6. Briefly stated, the assessee had filed his return of income for A.Y. 2008-09 on 11.07.2008, declaring total income at ₹ 1,05,520/-. The cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ands of the assessee. On the basis of his aforesaid contentions it was submitted by the ld. A.R that the addition of ₹ 11,47,660/- made by the A.O under Sec. 68 of the I.T Act could not be sustained in the eyes of law and was liable to be vacated. 9. Per contra, the ld. Departmental Representative (for short 'D.R') relied on the orders of the lower authorities. The ld. D.R. rebutting the aforesaid contention so advanced by the counsel for the assessee submitted that a 'bank passbook' could safely be construed as the 'books of accounts' of the assessee. 10. We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record. We have given a thoughtful consideration to the issue before us and find substantial force in the contentions advanced by the ld. A.R. We are persuaded to subscribe to the contention advanced by the ld. A.R that as the bank account or bank passbook of an assessee cannot be held as the latters 'books of account', hence no addition in respect of a cash deposit made in the said account could be validly made under Sec.68 to the I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ful it may so appear can be allowed to be read into a statutory provision in the garb of giving effect to the underlying intent of the legislature, thus confining ourselves within the realm of our jurisdiction, therein construe the scope and gamut of the aforesaid statutory provision by according a plain meaning to the language used in Sec. 68. We are of the considered view that a credit in the 'bank account' of an assessee cannot be construed as a credit in the 'books of the assessee', for the very reason that the bank account cannot be held to be the 'books' of the assessee. Though it remains as a matter of fact that the 'bank account' of an assessee is the account of the assessee with the bank, or in other words the account of the assessee in the books of the bank, but the same in no way can be held to be the 'books' of the assessee. We have given a thoughtful consideration to the scope and gamut of the aforesaid statutory provision, viz. Sec. 68, and are of the considered view that an addition made in respect of a cash deposit in the 'bank account' of an assessee, in the absence of the same found credited in the 'books of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of an assesse............The Hon'ble Bombay High Court in the case of Shri Bhaichand Gandhi (supra) has approved the proposition that a bank Pass Book maintained by the bank cannot be regarded as a book of the assessee for the purposes of section 68 of the Act. Factually speaking, in the present case, assessee is not maintaining any books of account and section 68 of the Act has been invoked by the Assessing Officer only on the basis of the bank Pass Book. The invoking of section 68 of the Act has to fail because as per the judgment of the Hon'ble Bombay High Court in the case of Shri Bhaichand N. Gandhi (supra), the bank Pass Book or bank statement cannot be construed to be a book maintained by the assessee for any previous year as understood for the purposes of section 68 of the Act. Therefore, on this account itself the impugned addition deserves to be deleted. I hold so. We further find that a similar view had also been arrived at in a 'third member' decision of the Tribunal in the case of Smt. Madhu Raitani Vs. ACIT (2011) 10 taxmann.com 206 (Gauhati) (TM), as well as by a coordinate bench of the Tribunal in the case of ITO, Barabanki Vs. Kamal Kuma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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